Embedded Aggregation in Civil Litigation

Richard Nagareda has just posted “Embedded Aggregation in Civil Litigation” on SSRN. I saw him present this piece at NYU and it is worth reading.  I always enjoy Nagareda’s work and this is no exception.  The Article does a good job of explaining the emergence of this idea of the “quasi” class action.  As a rule of thumb, whenever one sees a doctrine with a “quasi” in front of it, legal categories are in the process of breaking down. Here is the abstract:

Whenone hears the term “aggregation” in civil litigation, the context thatcomes to mind involves the long-running debate over class actions.Viewed within its own terms, that debate tends to convey the impressionthat the world neatly divides itself into the mass effects somehowunique to class actions and the confined realm of one-on-onelitigation. In the midst of this debate, a closely related set ofissues has gone curiously underexplored. Here, the concern is not oversome deviation from the one-on-one lawsuit. Rather, the basicsuggestion is to circumscribe what an ostensible individual action maydo in order to prevent that lawsuit from exerting some manner ofbinding force upon nonparties who are broadly similar to the partiesinvolved. The idea, in other words, is to constrain what individuallitigation may do, precisely because it is not a “de facto classaction” empowered to act upon nonparties. Variations of this concernhave emerged across what might seem an unrelated array of contexts: theSupreme Court’s 2008 decision in Taylor v. Sturgell, rejecting theprocedural doctrine of “virtual representation”; the Court’s 2007decision in Philip Morris USA v. Williams, regarding the constitutionaldue-process limits on punitive damages; and the multibillion-dollardeal reached in 2007 to resolve mass tort litigation over theprescription pain reliever Vioxx. This Article explains that there issomething deeper going on here but that its nature and implicationsremain undertheorized. Each instance involves a more generalphenomenon, what this Article delineates as “embedded aggregation.” Ineach, a doctrinal feature of what is ostensibly individual litigation –the scope of the right of action asserted, the nature of the remedysought, or the character of the wrong alleged – gives rise to demandsfor the suit to bind nonparties in some fashion, beyond the ordinarystare decisis effect that any case might exert. Ironically, thefeatures of Taylor, Williams, and the Vioxx litigation that make themsituations of embedded aggregation also, in all likelihood, woulddefeat efforts to aggregate them overtly as class actions. The resultis to leave the law today in a kind of procedural Catch-22, wherebyembedded aggregation seemingly invites class-action treatment, but suchtreatment is unavailable due to the very features that make thesituation one of embedded aggregation. This Article frames an emergingprescription for situations of embedded aggregation in a world in whichthe modern class action does not, and will not, realistically shoulderthe entire regulatory load. The way out of the procedural Catch-22 inwhich the law finds itself consists of “hybridization” – thecombination of individual actions with some manner of centralizingmechanism, just not always the unity of litigation generated by theclass action device. Moving outside the parameters of the class actionmeans shifting into new settings a similar need for a centralizingmechanism and, crucially, for legal regulation of the manner in whichit may exercise coercive power. In so doing, this Article seeks tobreak down the prevalent supposition of a neat division between theperceived need for legal regulation of class actions and the supposedlybenighted world of autonomous individual lawsuits. The time has come tomove the conversation about aggregate procedure beyond the class actiondevice – to broaden the menu of approaches available for our modernworld of mass civil claims. Such an approach actually would remain moretrue to the historical emergence of the class action device over timethan a prescription for either a vast expansion of that device orreflexive individualization in all situations of embedded aggregation.In addition, hybridization accords better with the emergingtransnational conversation about the design of aggregate litigationprocedures.

ADL